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Limits to the concept of ‘Associative Discrimination’

The Supreme Court has refused permission to appeal or to make a referral to the CJEU in Hainsworth v Ministry of Defence. Daphne Romney QC considers this brake on the concept of associative discrimination and the law of disability.

In Coleman v Attridge [2008] IRLR 722 the ECJ held that Art. 2 of the Framework Employment Equality Directive applied not just to employees with disabilities but also to those associated with people with disabilities. Art. 2 provides:

For the purposes of this Directive, the "principle of equal treatment" shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.

Mrs Coleman had, therefore, been treated less favourably on the grounds of disability for taking time off to look after her disabled son, for whom she was the sole carer. Similarly, in CHEZ RB, [2015] IRLR 746 the CJEU held that where a Romanian electricity company placed its meters at a height of 6-7 metres (normally, it would be 1.7 metres) in areas with a predominantly Roma population to avoid tampering, the claimant, who was not herself Roma, could still claim associative discrimination (it did not decide whether directly or indirectly) as the discriminatory conduct was on the grounds of race, albeit not her race.

In Hainsworth v Ministry of Defence [2014] IRLR 728, the issue for the Court of Appeal was whether a failure to make reasonable adjustments could also fall under Art. 5. This provides that:

In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in or advance in employment, or to undergo training unless such measures would impose a disproportionate burden on the employer.

Ms Hainsworth worked as a teacher on a British Army base in Germany. Her daughter, aged 17, had Downs Syndrome and was being cared for and educated in the UK as there were no appropriate facilities on any MOD base in Germany. Ms Hainsworth sought a compassionate transfer to the UK, which was refused. She brought a claim for disability discrimination against the MOD for failure to make reasonable adjustments. The MOD applied to strike out the claim, contending that s.20 of the Equality Act 2010 only applied to the person with a disability and not to family members. Ms Hainsworth conceded that, read literally, the section did not include associative discrimination, but contended that on the Marleasing principle [1990] ECR 1-4135, words should be read in to the legislation so as to comply with Art. 5. The ECHR intervened, represented by Paul Michell (who had appeared in Coleman) and Chris Milsom, both from Cloisters.

The Court of Appeal considered the wording of both Art. 5 and the Recitals and concluded that Art. 5 had no application to associative discrimination. Laws LJ said:

19. …it seems to me that the obvious and entire focus of Article 5 is upon provisions to be made by an employer for his disabled employees, prospective employees and trainees. That is, I think, powerfully supported in particular by Recital 20 “measures to adapt the workplace to the disability”. None of the other recitals relied on by Mr Pilgerstorfer begins, with respect, to suggest any different interpretation. Nor do other materials to which our attention was drawn…

20. Moreover, once it is postulated that the disabled beneficiary of Article 5 may be a person other than the employee, the Article gives no clue as to who that other person might be. On the face of the Article, it would be an entirely open question who such a person might be. The Article would be, in my judgment, hopelessly uncertain.

The Court of Appeal distinguished Coleman on the grounds that it concerned the application of Arts. 1 and 2, not Art.5, and that in paragraphs 39-42 of that case, the ECJ had expressly stated that associative discrimination was not within the wording of Art.5. It is worth noting that Art. 2(b)(ii) provides:

(ii) as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.

In considering the application for permission to appeal, the Supreme Court differentiated Art.2 and Art. 5. The latter imposes a positive duty to take certain steps to meet the needs of disabled persons whereas the former imposes a negative duty not to treat persons unfavourably on prohibited grounds or not to adopt a practice disadvantageous to persons with those characteristics. Art. 5 is a stand-alone provision. Further, the wording of the second sentence, which refers to enabling “a person with a disability to have access to, participate in or advance in employment, or to undergo training” can only refer to the disabled person and not to those associated with a disabled person, and this is confirmed by the wording of Recital 16 (which refers to “The provision of measures to accommodate the needs of disabled people at the workplace”).

The Supreme Court went on to say that had there been no CJEU guidance (i.e. in in areas, Coleman itself) it would not have made a reference in any event: the wording of Art. 5 was clearly confined to disabled employees and so was “acte clair”.

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